Prosecution

Although adult and juvenile arrests for sex offenses represent only a small
fraction of arrests for all types of crimes (FBI, 2006; Snyder & Sickmund,
2006), the absolute numbers are nonetheless considerable and require a significant
investment of time and resources within the courts. The weight of managing
these cases rests heavily on prosecutors, who bear the primary responsibility
for making decisions about the charges or petitions to be filed, representing
the state’s interests if these cases proceed to trial, participating
in plea negotiations, and offering disposition recommendations to the courts.

Pre–Trial Management

After charges are filed, decisions must be made about whether to detain
defendants or release them to the community pending resolution of the case.
The court must take into account a number of factors, including the nature
and severity of the cases, history of violence or aggression, risk to abscond,
and the threat of harm to self or others. Critically important to review
are victim safety concerns, particularly when allegations involve stalking,
domestic violence, or child victims within the home. Additional considerations
might include current employment, the presence of appropriate community supports,
and the potential hardship (e.g., financial) that the defendant’s removal
from the community may have on dependents. If a defendant who was initially
detained is later deemed to be suitable for release, appropriate bail schedules
(commensurate with the level of risk posed by the defendant) should be in
place. No contact orders and other restrictions may then be necessary to
protect alleged victims from pressure, intimidation, or harm, while assuring
that due process safeguards are maintained for the defendant.

Similar factors warrant consideration during initial appearances/detention
hearings with juveniles alleged to have committed sex offenses (e.g., seriousness
of allegations, prior delinquency, suicide risk, history of running away).
Several family and home variables must be assessed at this point as well,
including the ability and willingness of parents or guardians to provide
sufficient structure and supervision and the presence of parental risk factors
such as substance abuse or current legal involvement. When allegations involve
a child victim within the home, the juvenile and family courts must determine
whether adequate safeguards can be established to ensure the ongoing safety
of the child and other potentially vulnerable individuals within the home,
or whether more appropriate alternative placements (e.g., extended family,
foster care) are available. Sometimes, a significant period of time has elapsed
between the time that the offenses were alleged to have occurred and the
juvenile’s ultimate appearance in court (either because of delayed
disclosure or prolonged investigation). Under these circumstances, and if
the juvenile remained in the community during that period, the court may
take into account the juvenile’s adjustment in school, at home, and
in the community when deciding whether to release or detain the juvenile.

Prosecutorial Practices

To facilitate the consistent and effective handling of cases involving sex
crimes, the philosophies and policies established within prosecutors’ offices
must be transparent; expectations of chief prosecutors and juvenile court
officials should be clearly conveyed to their staff, including preferred
approaches to managing caseloads, charging, and negotiating. For example,
an ideal approach to caseload management is vertical prosecution, whereby
a single prosecu–tor follows the case from the point of charging, through
witness preparation, pre–trial motions, trial, and disposition. Vertical
prosecution for sex offense cases has multiple benefits, including the following
(APRI, 2003; Holmgren, 1999):

Reducing the number of individuals to whom the victim must provide statements;

Maintaining consistency and continuity of case processing;

Promoting prosecutor familiarity with the victim and the facts of each
case;

Ensuring the preservation of critical information that can be lost when
cases are transferred; and

Establishing victim trust and rapport.

Another important prosecutorial practice that is ideal for sex offense cases
is the assurance that the charges filed accurately reflect the nature and
seriousness of the allegations (Holmgren, 1999; NAPN, 1993; Schafran, Bayliff, & Baldini,
2001b; Simon, 2003; Strate, Jones, Pullen, & English, 1996). Beyond
sending a clear message to the public that sex offenses are taken seriously,
this charging practice can provide validation to victims, prevent minimization
of the severity and impact of the crimes, and ultimately promote greater
accountability for the individuals who have committed these offenses.

Creating specialized sex crimes units within prosecutors’ offices
can be an effective and efficient approach to ensuring that these and other
philosophies and practices are implemented consistently (see, e.g., English
et al., 1996; NAPN, 1993). By providing specialized training to a limited
number of prosecutors, internal expertise and greater capacity can be developed
and staff can be deployed more rationally. However, when staff resources
are limited, establishing dedicated sex crimes units may not be a viable
option. As an alternative, individual prosecutors can be trained as specialists.
At a minimum, all prosecutors who will be responsible for sex crimes should
receive specialized training about these cases (Holmgren, 1999; NAPN, 1993).

Special Considerations with Juvenile
Defendants

At a minimum, all prosecutors who will be responsible
for sex crimes should receive specialized training about these cases.

As is the case with adults who have committed sex offenses, experts suggest
that some form of legal intervention can facilitate the effective management
of sexually abusive youth, by providing necessary leverage to support compliance
with treatment and supervision expectations (ATSA, 2000; NAPN, 1993). However,
when juveniles are the defendants, the court officials responsible for prosecuting
these cases must be particularly mindful of age, maturity, cognitive functioning,
and other developmental factors that may impact mens rea (criminal intent)
or competency issues. In those instances, deferred prosecution, informal
adjustments, and juvenile court diversion may be appropriate options, particularly
when expectations for treatment services are included as part of the disposition.
Conversely, in some exceptional cases—such as when the offenses are
particularly violent or serious, or when the juvenile has not responded to
multiple previous interventions—the youth may be deemed to be beyond
the scope of the juvenile justice system. This may result in transfer/waiver
to the adult courts for prosecution.

At all times, it is important for prosecutors and other juvenile court officials
to keep in mind that juvenile sex offenders are not identical to their adult
counterparts and, as such, the ways in which they are approached in the courts
should be not be identical (see, e.g., Becker & Hicks, 2003; Letourneau,
2006; Letourneau & Miner, 2005; Zimring, 2004). Indeed, applying the
same legal strategies to youth that were designed for adults may result in
unintended negative consequences and could lead to undesirable outcomes (Becker & Hicks,
2003; Letourneau, 2006; Letourneau & Miner, 2005; Zimring, 2004). Thorough
investigations and relevant forensic evaluations can assist prosecutors with
making informed decisions about how best to proceed.

Victim–Centeredness

The progression of a case through the prosecution phase can be a particularly
difficult time for many individuals who have been victimized sexually. As
such, both system and non–system based victim advocates should be available
to provide education, support, and assistance to victims and their families
(see, e.g., CSOM, 2000, 2006; D’Amora & Burns–Smith, 1999;
English et al., 1996; OVC, 2000). Among the services provided by victim advocates
at this juncture include the following:

Assessing victims’ most critical needs;

Orienting victims to the court process;

Providing information about victims’ rights;

Informing victims about critical court dates and the status of cases;

Assisting with victim compensation applications;

Providing assistance with preparation of victim impact statements; and

Accompanying victims to court proceedings.

Victims must always be allowed to determine their own level of participation
in the various proceedings within the criminal justice system. For some victims,
involvement may be therapeutic and facilitate recovery, while for others,
participation in the criminal justice process is not desired and may exacerbate
the trauma already experienced. As such, it is incumbent upon those in the
legal system to ensure that the desires and needs of victims are respected
at all phases of the process. In many jurisdictions, specific provisions
of victims’ rights laws address these very issues.

Testifying in court can have a significant impact on victims for a host
of reasons (English et al., 1996; Myers et al., 2002; Schafran, Baldini, & Bayliff,
2001a; Schafran et al., 2001b). Facing the defendant in court can be extremely
difficult and intimidating for some victims, and recounting the victimization
experience may be especially difficult for victims and their families. Moreover,
the victim’s reliability or credibility may be called into question,
placing them in a defensive and uncomfortable position. When child victims
are required to testify, these and other issues become even more pronounced.
Therefore, defense attorneys, prosecutors, and judges must be sensitive to
the age, maturity, development, and emotional adjustment of children so that
they are better able to frame questions in an understandable and non–threatening
manner, and so that they can communicate to children the importance of truthful
responses.

Taken together, these concerns highlight the unfortunate reality that victims
can be further traumatized by the court process. To minimize this potential,
prosecutors and victim advocates should meet with victims and families early
to explain the various steps in the court process, assess the ability and
willingness of victims to testify, prepare them for the dynamics of the proceedings,
and identify any allowable accommodations that may be necessary (APRI, 2003;
D’Amora & Burns–Smith, 1999; Schafran et al., 2001a, 2001b).
For example, prosecutors and other court officials should take steps to ensure
that safe and separate waiting rooms or loca–tions are available for
victims and their families during the court proceedings.

Prosecutors and defense attorneys should work collaboratively to avoid unnecessary
delays and continuances in the process; such delays are neither beneficial
to the alleged offender nor the victim, and may increase the stress and potential
trauma to victims and impact their ability to recall critical details (APRI,
2003; Myers et al., 2002; Schafran et al., 2001a, 2001b). In some circumstances,
however, expediting a case before a victim is emotionally prepared can also
have a negative impact on victims.

Judges can also play a key role in promoting victim–centeredness during
the court proceedings while still remaining impartial (Schafran et al., 2001b).
Specifically, they have significant influence over the following:

Allowing support persons to be present for victims during the proceedings;
and

Demanding appropriate conduct by attorneys.

Plea Negotiations

To the extent possible, plea negotiations should ensure
that the sexually abusive aspects of the crime remain visible.

Many cases involving sex offenses do not proceed to trial; rather, they
are commonly resolved through plea negotiations. Plea negotiations can be
beneficial in multiple ways, such as promoting the timely resolution of cases,
minimizing the likelihood of system–induced trauma for victims and
their families, avoiding the potential for a not–guilty verdict at
trial, and limiting appellate issues.

Despite the advantages, however, certain aspects of plea negotiations must
be taken into account when adult and juvenile sex offense cases are involved,
namely because of the potential for unanticipated collateral consequences
(see, e.g., Cumming & Buell, 1997; Holmgren, 1999; Klotz, Wexler, Sales, & Becker,
1992; NAPN, 1993; Strate et al., 1996). To illustrate, some plea agreements
may eliminate the sex offense component of the case (e.g., reducing a charge
from forcible rape to aggravated assault), which can inadvertently imply
to the victim that the offense was actually less harmful or serious. And
when cases involve multiple victims, agreeing to drop some of these charges
in exchange for a guilty plea to a more limited set of charges can have the
same effect. Furthermore, eliminating the sex offense nature of the crime
through plea negotiations can limit the eventual applicability of common
sex offender management strategies such as offense–specific treatment,
specialized supervision and monitoring strategies, and sex offender registration
and community notification laws (Holmgren, 1999; NAPN, 1993). Thus, to the
extent possible, plea negotiations should ensure that the sexually abusive
aspects of the crime remain visible.

The use of Alford and nolo contendere/no–contest pleas in sex offense
cases can be similarly problematic (Cumming & Buell, 1997; Klotz et al.,
1992; Strate et al., 1996). Typically, when defendants offer a plea of guilty,
the factual basis for the plea must be established, whereby the individual
must acknowledge in open court the details contained in the allegations or
charging document. With Alford pleas, however, criminal defendants are allowed,
under certain circumstances, to plead guilty to an offense while maintaining
their innocence. And with nolo contendere pleas, defendants agree to accept
the consequences for a crime without either admitting or denying the facts
of the crime. Much like charge bargaining, these types of plea agreements
can invalidate victims’ experiences in sex offense cases. Moreover,
because the defendants are not required to acknowledge having committed the
offenses for which they ultimately receive convictions, plea agreements of
this nature can exacerbate offender denial and minimization, and undermine
the treatment and supervision process (Cumming & Buell, 1997; Holmgren,
1999; Klotz et al., 1992).

In order to ensure that plea agreements are well–informed and appropriate
for both offenders and victims, they must be guided by sufficient information
about the defendant, the offense behaviors, and community safety needs (English
et al., 1996; Holmgren, 1999; NAPN, 1993; Schafran et al., 2001b). Therefore,
prior to engaging in plea negotiations, prosecutors should seek thorough
assessments of the defendant (Holmgren, 1999; NAPN, 1993). (For additional
information about these and other assessments, see the Assessment section
of this protocol.)

Generally speaking, it is not recommended that forensic evaluators conduct
specialized psychosexual evaluations prior to the adjudication process because
of the potential for ethical and other controversies (e.g., self–incrimination,
revealing additional undetected offenses that may be charged, undermining
the presumption of innocence). However, these evaluations can be potentially
useful during the plea negotiation process under prescribed circumstances,
such as when all parties agree to the evaluation to facilitate negotiations,
or when the prosecution agrees not to file additional charges based on information
disclosed during a pre–plea evaluation.

Ideally, victims should be consulted prior to reaching plea agreements;
this is mandated in many states’ victims’ rights provisions.
Furthermore, plea negotiations and alternative disposition recommendations
should include requirements that sexually abusive individuals accept responsibility
and demonstrate a willingness to fully engage in sex offense–specific
treatment (Holmgren, 1999; NAPN, 1993; Schafran et al., 2001a, 2001b). Given
the overarching goal of ensuring community safety, prosecutors may decide
not to participate in plea negotiations. In the event that they do, judges
may choose not to accept such pleas, particularly when defendants deny responsibility,
fail to demonstrate treatment amenability, or refuse to cooperate with assessment
processes (English, Jones, & Patrick, 2003; Holmgren, 1999; NAPN, 1993).

Plea negotiations will remain a common and sometimes necessary case management
strategy at this phase in the criminal and juvenile justice process. As such,
prosecutors, defense attorneys, and judges must understand the potential
caveats of certain plea bargaining practices with sex offense cases, and
ensure that any plea agreements appropriately balance due process, offender
accountability, and victims’ needs and interests in a way that promotes
effective management efforts.